of the Oireachtas by the representative of the Crown in the name of the King.
(c)The right of Dáil Éireann subject to (b) to fill the date of re-assembly.
The principles embodied in (a) and (c) were deemed to be fundamental. It was recommended that they be separated from (b) and made the subject of a distinct article or articles. Regarding (a), it was observed that the obvious intention of this provision was to ensure that democratic control through parliament was not defeated by unduly prolonged non-assembly of that body. However, the article did not prescribe any specific mechanism or charge any individual or institution with the responsibility of putting it into effect. The committee was not unduly concerned at this juncture as the Oireachtas was required to assemble annually for the purpose of voting monies to the executive (under the terms of Article 36). What did concern the four civil servants was a situation ‘in which the Oireachtas might be induced to forgo this practice and to empower an executive to obtain the necessary monies without having to resort annually to parliament’. The relevant provisions of other constitutions were considered to address this issue. Those of seven countries – Czechoslovakia, Denmark, Estonia, Germany, Yugoslavia, Mexico and Poland – were examined and their relevant provisions reproduced in Appendix E of the report.26 On the basis of this examination, the committee concluded that the possibility of prolonged non-assembly could be addressed by requiring
(i)That parliament shall meet on a specified date in each year, if not previously convoked, and/or
(ii)That if a certain proportion of the total number of its members so requires, parliament must be convened within a prescribed time.
The observations on Article 65 were perhaps some of the most interesting and significant. This article stated: ‘The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution.’ The committee’s members accepted as a fundamental principle that some court should have the power to determine the constitutional validity of laws. They could not, however, agree on the judicial mechanism to achieve this:
In the course of our consideration of this article, the following points were discussed, viz:
Whether the power of deciding the validity of laws, having regard to the provisions of the Constitution, should be vested
(a)In the Supreme Court alone, or
(b)In a special ‘Constitution’ Court appointed or designated for that purpose, e.g. a combination of the Supreme and High Courts, or
(c)In the High Court with a right of appeal to the Supreme Court as at present.27
The idea of a constitutional court was a radical one and the fact that it was discussed by the committee highlighted that its members were willing to consider suggestions which were not constrained by the conservative legal system prevailing in Ireland at the time. Moreover, this discussion demonstrated that they ‘must have had a very sophisticated understanding of the dynamics of constitutional law’.28
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